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Johnson v. Stojan Law Office, P.C.

Court of Appeals of Illinois, Third District

January 12, 2018

STOJAN LAW OFFICE, P.C., and CLARK J. STOJAN, Defendants-Appellees (Bret D. Johnson, Plaintiff-Appellant).

          Rehearing denied February 22, 2018

          Appeal from the Circuit Court of Rock Island County, No. 14-L-90; the Hon. Joseph F. Fackel, Judge, presiding.

          Mark J. McAndrew and Kaitlyn Anne Wild, of Rathje & Woodward, LLC, of Wheaton, and Stephen T. Fieweger, of Davenport, Iowa, for Appeal appellant.

          Matthew R. Henderson and Adam R. Vaught, of Hinshaw & Culbertson LLP, of Chicago, for appellees.

          JUSTICE O'BRIEN delivered the judgment of the court, with opinion. Presiding Justice Carter and Justice McDade concurred in the judgment and opinion.



         ¶ 1 Plaintiff Bret Johnson (Johnson) brought this legal malpractice action against defendants Stojan Law Office, P.C., and Clark Stojan, which had drafted trust documents and a trust amendment for Johnson's mother, Jean Sztajer. The complaint alleged Stojan breached various duties it owed Johnson, who had been a successor co-trustee of the trust. Stojan moved for summary judgment, arguing it had no duty to Johnson. The trial court denied the motion, but on reconsideration, granted summary judgment in Stojan's favor, finding Stojan owed no duty to Johnson. The trial court also denied Johnson's motion for leave to file a second amended complaint. Johnson appealed. We affirm.

         ¶ 2 FACTS

         ¶ 3 Jean Sztajer, mother of Sivi Polit and plaintiffs Bret Johnson and Sean Johnson, retained defendants Clark Stojan and Stojan Law Office, P.C. (collectively, Stojan), to draft a living trust. Sztajer executed the trust on May 31, 2001. The trust provided, in part, that Sztajer had the right to amend or modify its terms without the consent of any trustee or beneficiary. It granted the trustee the authority to appoint an agent or attorney-in-fact with all the powers of the trustee. The trust provided the grantor the right to remove any trustee and appoint successor trustee(s), with written notice to the trustee(s) to be removed and appointed. The trust named Sztajer's three children as successor co-trustees in the event of Sztajer's death, incompetency, disability, or other inability to act.

         ¶ 4 Sztajer retired in 2008 from her position as a professor of accountancy at Augustana College. She started to suffer from cognitive deficits, which worsened over the years. In January 2010, she was evaluated by a clinical neuropsychologist, who diagnosed Sztajer with mild stage Alzheimer's disease and referred her for another evaluation in a year. In August 2010, Sztajer's primary doctor diagnosed her as suffering from "Alzheimer's Dementia with Behavioral Disturbance." On November 12, 2010, Sztajer executed a special power of attorney for property, which Stojan drafted, naming Polit as Sztajer's agent as trustee of the trust. The family began discussing Sztajer's care around Thanksgiving 2010, and discussions continued into the new year. In January 2011, it was decided that Polit should take over Sztajer's care. A series of emails documents the conversations between Sztajer's children and Stojan regarding this decision. As part of the plan, Sztajer moved in with Polit in February 2011, with Polit to be paid from the trust for her caregiver services.

         ¶ 5 A January 2011 follow-up evaluation by the clinical neuropsychologist indicated that Sztajer had experienced "significant decline in memory, naming, and visuospatial skills" from the visit a year earlier but the impairment in Sztajer's executive functioning had not changed from the prior January 2010 visit. Profound impairment in Sztajer's episodic memory was noted.

         ¶ 6 On March 23, 2011, Sztajer visited Stojan and executed an amendment to the trust, which removed Sean Johnson and Bret Johnson as successor co-trustees and named them as second successor co-trustees. Polit was named the sole successor trustee. Sztajer also signed a letter of direction to Polit concerning trust distributions. Stojan signed an affidavit averring that he drafted the letter of direction and trust amendment at Sztajer's direction, that he discussed the documents in confidence directly with Sztajer, and that Polit played no role in preparing the documents. In his deposition, Stojan stated that Sztajer told him she was concerned about her sons' response to the changes in the trust and she asked him not to inform them of the changes. According to Stojan, Sztajer was competent to conduct her affairs on March 23, 2011. Polit also testified at her deposition that she had no concerns about Sztajer's competency in March 2011. The doctor treating Sztajer for her Alzheimer's disease opined, following an evaluation in May 2011, that Sztajer was competent to make significant life decisions.

         ¶ 7 In late 2012, Johnson and his brother began to question disbursements from the trust. They complained to the Illinois Department on Aging, and in early 2013, an investigation into financial exploitation was conducted. The investigation terminated for lack of sufficient evidence. Sztajer died on November 6, 2013. In July 2014, Johnson and his brother filed this action, alleging professional negligence and common law fraud. In January 2015, they filed a first amended complaint, alleging legal malpractice against Stojan and Stojan Law Office. Stojan moved for dismissal, arguing it owed no duty to Johnson and his brother. The trial court denied the motion, and the case was consolidated for discovery purposes with a separate action filed by Johnson and his brother against Polit. In April 2016, Sean Johnson was dismissed from this case with prejudice.

         ¶ 8 In May 2016, Stojan moved for summary judgment. Following a hearing, the trial court denied Stojan's motion. Stojan moved for reconsideration, which the trial court granted. The court entered summary judgment in favor of Stojan, finding Stojan did not owe a duty to Johnson. Johnson moved for reconsideration of the summary judgment order and sought leave to file a second amended complaint. The second amended complaint included a legal malpractice ...

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